Dunning v. Rankin

Cope, J. delivered the opinion of the Court Field, C. J. concurring.

This is an action to recover certain mining claims to which the plaintiffs set up a right by prior possession. On the trial of the case, they relied in proof of their priority upon a notice which had been posted on a tree at one end of the claims. The notice itself was not produced, and the first objection taken is that its contents were allowed to be proved by secondary evidence. The witness who testified upon the subject stated that he had seen the notice frequently; and that when he last saw it a part of it was torn off and the residue so much defaced that he thought it could not be read. This was sufficient to warrant the admission of the evidence objected to, and we think that greater strictness of proof ought not to be required in such cases. The notice was necessarily placed in an exposed position, and it is reasonable to infer that the part torn off had been carried away or destroyed by the elements. The failure to produce the part remaining was sufficiently excused by the statement of the witness as to its illegible condition. It is true, the witness did not express himself in positive terms, but as the whole notice could not be produced," we think the Court was justified in admitting the evidence.

The point as to the question asked in regard to the extent of the - original location of the plaintiffs is not maintainable upon the exception taken. The objection was general, and as the plaintiffs might have obviated the difficulty by changing the form of the question, the ground of the objection should have been stated. The case seems to have been fairly tried, and we have no doubt that justice has been done.

Judgment affirmed.